V RANGASAMI NAIDU Vs. SUNDARAJULU NAIDU

JUDGEMENT

(1.) This action was brought for a declaration that certain immoveable properties attached by the 1st defendant, in execution of a decree obtained against the second (a brother of the plaintiff) did not belong to him, but to the plaintiff. The plaintiff s case is and that is found to be true by both the Courts below, that his two elder brothers the 2nd and 3rd defendants in the action were separated by his father Krishnaswami Naidu, that thereafter the plaintiff and his father continued to be members of a joint Hindu family, that one of the suit properties belonged to them as ancestral property and the other was acquired by them and became joint family property and that neither of his two brothers had any interest in them. Originally the 1st defendant the holder of the decree against the 2nd defendant was alone made a party to the action. There was an appeal by him to the District Court, Coimbatore and the then District Judge directed the brothers of the plaintiff to be made parties and remanded the suit to the 1st Court to take the evidence which may be let in by the brothers after they had been made parties. This was done and the appeal was finally decided against the 1st and 2nd defendants ; the 3rd defendant the other brother of the plaintiff disclaimed all interest in these properties. The 1st and 2nd defendants have jointly appealed to this Court and their learned pleader has raised two points in appeal.

(2.) First of all he contended that the evidence taken in the suit, before the 2nd defendant was made a party, should not have been used against him and relied on Section 33 of the Evidence Act. I think that there is no merit in this contention. The 2nd defendant, after he was made a party, was served with summons, took time and filed a written statement which was the same as that of the 1st, took an adjournment for letting in his evidence and on the adjourned day put in his evidence. He did not require that the evidence previously taken should be reheard, nor did he desire a trial de novo of the suit as against him. When the appeal was heard in the District Court he again took no objection to the evidence already taken in the case being considered against him. It is clear that the 1st defendant represented his interest in the previous stages of the proceedings and he was fully cognizant of the steps taken by him to prove their common case. In fact he himself gave evidence at the previous trial and the present appeal is a joint appeal by the 1st and 2nd defendants on the same grounds. In these circumstances I think he is not now entitled to take that objection and Section 33 of the Evidence Act has no application to this case.

(3.) The other point taken is that there having been a separation of the 2nd and 3rd defendants, in law, there was a separation in status between the plaintiff and his father and unless there was proof of a subsequent reunion, the plaintiff and his father must be deemed to have been holding the suit properties as tenants in common, in which case the father s share (now that he is dead) would devolve on his sons including the 2nd and 3rd defendants in equal shares. It was slso stated that the appellants were in a position to prove that the plaintiff at the time of the separation of the brothers was a minor and was incapable therefore of entering into an agreement to remain united or to reunite after partition. I may observe at the outset that no such contention appears to have been raised in either of the lower courts and that the question for decision is really one of fact, whether or not the plaintiff and his father were members of a joint Hindu family ; though in arriving at a conclusion all presumptions whether of law or fact may have to be taken into account. But as however we have heard the learned pleader for the appellants at length I think it right to examine the question raised by him.